Welcome to the second entry in the blog series about reproductive rights in the United States. In the last entry we discussed the existence of reproductive rights at the birth of the nation, and how those rights were limited over time through the imposition of laws that arose out of the pivot of United States societal beliefs that life begins at the “quickening” to the belief that life begins at conception. Also key to the reduction of the availability to legal abortions was the rise of the male dominated American Medical Association, which lobbied to regulate who could practice what they defined as “medicine” making it harder for non-licensed individuals, such as midwives, to have a role in reproductive health care.
In this entry we will examine the events leading to the case of Roe v. Wade. Through the examination of the events and the review of the ruling passed down by the Supreme Court of the United States (SCOTUS) we will be able to follow the direction that reproductive health progressed. We will review the arguments made by both the pro-life and pro-choice movements, assess the laws restricting reproductive health within the confines of the decision of Roe, and identify why those restrictions came to be. We will end with the events leading to the decision passed down by Dobbs v. Jackson.
The Case of Roe v. Wade started as a class action challenge to Texas State Criminal Laws prohibiting abortion except in cases which were necessary for the preservation of the life of the mother (Center For Reproductive Rights, 2022). As discussed in the first entry in this series, at the time of Roe, nearly all the states in the union had enacted laws that prohibited abortion, these laws resulted in countless deaths from illegal, black-market abortions conducted in often unsafe environments with no oversight or medical understanding (Center For Reproductive Rights, 2022). In order to understand the case of Roe v. Wade, we must first understand the environment that allowed for the case to be brought to SCOTUS.
The fight for reproductive rights started in challenges to rules that came from the Comstock law, which if you will remember from the last entry, was the law that prohibited the distribution of contraceptives and abortion medications via the United States mail service. In 1965, SCOTUS ruled that laws banning distribution of contraceptives to married couples were unconstitutional based on its violation of that couple’s implied right to privacy under the Constitution (Griswold v. Connecticut), a ruling quickly followed up by SCOTUS in 1972 (Eisenstadt v. Baird) established that the banning of contraception distribution to unmarried adults violated that same right to privacy (Onion, Sullivan, Mullen, & History.com, 2022). At the same time Colorado became the first state to broaden a woman’s legal access to abortion followed by 11 other states (A History of Key Abortion Rulings of the U.S. Supreme Court, 2013). Additionally, in 1970, Hawaii, New York, and Alaska completely decriminalized abortions, though Hawaii only legalized abortions for its residents (Onion, Sullivan, Mullen, & History.com, 2022).
Knowing the environment, it’s time to review the case. Roe v. Wade was, in all actuality, one of two cases brought before SCOTUS: Roe v. Wade, a case involving a challenge to Texas State law limiting abortions to instances in which the mother’s life was in danger, and Doe v. Bolton, a case out of Georgia challenging the state law in which abortion was considered criminal except in cases where the mother’s health or life were in danger (A History of Key Abortion Rulings of the U.S. Supreme Court, 2013).
The difference between the two cases is that in Doe v. Bolton, the plaintiffs were a couple who were childless and sued the state of Georgia on the basis that the law infringed on their rights in the event of future possibilities of contraceptive failure, pregnancy, unpreparedness for parenthood, and impairment of the wife's health whereas the in the case of Roe v. Wade, the plaintiff was a single pregnant woman who argued that anti-abortion laws infringed on her rights by banning abortions except in situations where medical advice recommended abortion on the basis of preserving the mother’s life (Roe v. Wade, 410 U.S. 113 (1973), 2022).
In the case of Doe v. Bolton, a lower three judge district court ruled that the lawsuit was not capable of judgement in the court due to its speculative nature, however, that district court also determined that the laws under challenge were unconstitutional, deeming them violations of a person’s 9th and 14th amendment rights (Roe v. Wade, 410 U.S. 113 (1973), 2022). SCOTUS upheld the ruling on the capability of judgement due to its speculative nature, but also held that the laws were unconstitutional as well (Roe v. Wade, 410 U.S. 113 (1973), 2022).
In Roe v. Wade, the same three judge district court ruled that despite the natural termination of Jane Roe’s pregnancy, she had standing to sue based on the fact that “litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy must exist at review stages, and not simply when the action is initiated” (Roe v. Wade, 410 U.S. 113 (1973), 2022). SCOTUS, on the same day as its ruling in the case of Doe v. Bolton, upheld the district court’s ruling on all counts (Roe v. Wade, 410 U.S. 113 (1973), 2022).
What does it all mean?
In short, both rulings held that laws prohibiting abortions, were unconstitutional given their violation of the implied rights to privacy under the 9th and 14th amendments (Roe v. Wade, 410 U.S. 113 (1973), 2022). However, the rulings applied some guidelines to the states in their implementation of laws governing abortions. These guidelines held that viability was the point at which a woman’s right to determine if she wanted to carry a child to term would end, specifically identifying the first term as the time period prior to a fetus’s viability (Center For Reproductive Rights, 2022).
Beyond viability, SCOTUS ruled that it was the states purview to establish laws restricting access to abortion so long as they were narrowly defined as to serve a compelling government interest (Center For Reproductive Rights, 2022). The ruling essentially made abortions legal throughout the nation up to the end of the first trimester. Doe v. Bolton furthered the constitutional right to abortion by ruling that the state could not limit access if the procedure was sought for reasons of maternal health, SCOTUS continued in that ruling by defining health as “all factors – physical, emotional, psychological, familial, and the woman's age – relevant to the well-being of the patient” (Summary of Roe v. Wade and Other Key Abortion Cases, n.d.). Combined, these rulings effectively made abortion legal from conception through all three trimesters.
Almost immediately, abortion access came under attack from pro-life proponents. A major pro-life organization, the National Right to Life Committee (NRLC), originally formed under the National Conference of Catholic Bishops, became an independent organization in 1973 and began to take advantage of a newly invigorated pro-life movement as a result of the dual rulings in Roe and Doe (Karrer, 2011). In 1974, abortion became a campaign issue, and in 1976, the Hyde Amendment was passed (Karrer, 2011).
The Hyde Amendment was an amendment to the 1977 fiscal appropriation for Medicaid. Introduced by a pro-life congressman by the name of Harry J. Hyde, the Hyde Amendment, prohibited the use of federal Medicaid funds to pay for abortion procedures except in cases where the life of the mother was in danger (Access Denied: Origins of the Hyde Amendment and Other Restrictions on Public Funding for Abortion, n.d.). Key leadership within pro-life organizations spoke out in protest of both decisions, with men such as Victor Rosenblum, Vice Chairman of Americans United for Life (AUL), and John Noonan, a pro-life law professor at the University of California at Berkely, comparing the ruling that fetuses were not human under the law to the ruling in the Dredd Scott case that black people were not considered human in the context of the Constitution (Karrer, 2011). Noonan even went so far as to call for a Constitutional amendment, called the Human Life Amendment (HLA) to be added to the Constitution in order to ensure that the constitution had the teeth it needed to protect human life (Karrer, 2011). An attempt was made in the late 1970’s to bring such an amendment to reality, first failing in Congress and then in a failed attempt to initiate a Constitutional convention (Karrer, 2011).
In 1992, in the case of Casey v. Planned Parenthood, SCOTUS reaffirmed the Roe decision by finding that a state cannot ban or interfere with a woman’s decision to have an abortion, however, it did uphold laws that required a 24 hour waiting period and parental consent for minors seeking abortions (Chicago Tribune, 2001).
Over the course of the nearly fifty years following the decision in Roe, pro-life organization lobbied states to pass various laws in order to restrict abortion access. Some of these came in the form of bans: Method bans, Reason Bans, and criminalization of self-managed abortions (SMA) (Center For Reproductive Rights, 2022). Other laws appeared in the form of restrictions: Targeted Restrictions of Abortion Providers (TRAP), parental involvement, and consent laws (Center For Reproductive Rights, 2022).
Abortion bans were frequently overturned by the court system (Bans on Specific Abortion Methods Used After the First Trimester, n.d.). One well known method ban was held up by SCOTUS in 2007, this method is commonly known as a partial birth abortion. Partial birth abortions are defined as a method of abortion in which a child is partially delivered from the womb with the sole intent of conducting a procedure in which would result in the death of the partially born fetus (Tanne, 2007). The ban in question was passed by congress and banned partial birth abortions nation wide (Tanne, 2007). The law was challenged based on its failure to include a provision for the health of the mother, and the decision by SCOTUS to uphold the law was applauded by pro-life organizations while at the same time being derided by pro-choice organizations as being the first step to the erosion of the “Constitutional respect and protection accorded to women and the personal decisions they make about pregnancy and childbirth” (Tanne, 2007).
As medical capabilities increased, so too did the ability for doctors to detect and understand the growth of the human fetus during pregnancy. A result of these innovations in healthcare a new form of abortion bans rose in the 2000’s and 2010’s called a fetal heartbeat abortion ban (SMYTH, 2022). These laws placed a ban on abortions after the detection of a fetal heartbeat, which usually occurs around six weeks into a woman’s pregnancy (SMYTH, 2022). In 2001, Texas introduced a fetal heartbeat ban, but created an enforcement technique that proved to be difficult to challenge. Called a vigilante law, enforcement was not executed by the state, instead it was beholden to private citizens to enforce the law through lawsuits (BOHRA, 2021). SCOTUS did not take up the law and reaffirmed that the Justice Department, in its attempt to sue for an injunction, was not suing the correct plaintiff as the state was not the enforcer (BOHRA, 2021).
The culmination of the fight over abortion rights was the challenge to a Mississippi Law that prohibited all abortions with minor exceptions after 15 weeks. The challenge, and the case, now known as Dobbs v. Jackson, resulted in a SCOTUS ruling that completely overturned the ruling in Roe by invalidating the decision and determining that there is no protection for abortion in the Constitution (Oyez, n.d.). Next time, in the final entry we will examine that case with more depth, review the changes to our nation’s abortion laws following the SCOTUS decision and make an attempt to find a middle ground that will allow for the national restoration of a woman’s right to choose.
Works Cited
A History of Key Abortion Rulings of the U.S. Supreme Court. (2013, January 16). Retrieved from Pew Research Center's Religion & Public Life Project: https://www.pewresearch.org/religion/2013/01/16/a-history-of-key-abortion-rulings-of-the-us-supreme-court/
Center For Reproductive Rights. (2022, July). Center for Reproductive Rights. Retrieved from Roe v. Wade - Center for Reproductive Rights: https://reproductiverights.org/roe-v-wade/
Karrer, R. N. (2011). “The Pro-Life Movement and Its First Years under ‘Roe.’” American Catholic Studies, 122(4), 47-72.
Onion, A., Sullivan, M., Mullen, M., & History.com, E. (2022, June 24). History. Retrieved from History.com: https://www.history.com/topics/womens-rights/roe-v-wade
Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970). (2022). Retrieved September 2022, from Justia Law: https://law.justia.com/cases/federal/district-courts/FSupp/314/1217/1472349/
Roe v. Wade, 410 U.S. 113 (1973). (2022). Retrieved from Justia Law: https://supreme.justia.com/cases/federal/us/410/113/
Roe v. Wade, 410 U.S. 113 (1973). (2022). Retrieved from Justia Law: https://supreme.justia.com/cases/federal/us/410/113/#114
Summary of Roe v. Wade and Other Key Abortion Cases. (n.d.). Retrieved from Usccb.org: https://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/upload/Summary-of-Roe-v-Wade-and-Other-Key-Abortion-Cases.pdf
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